184 Evans v. Hitchcock.. 295 Easter, impl., etc., v. Minard 494 Ex parte Klepper . F Kinzie ads. Myers, impl., etc., 532 Knapp et al. v. Marshall et al. Kidder ads. City of Peoria.. 36 63 84 351 Ford ads. Currier... and Mississippi R. R. Co. 218 DECISIONS OF THE SUPREME COURT OF THE STATE OF ILLINOIS, OF CASES ARGUED AT APRIL TERM, 1861, AT OTTAWA. CHARLES R. CARROLL, Appellant, v. CHARLES BALLANCE, Appellee. APPEAL FROM PEORIA. 26 9 40 A mortgagee may recover in ejectment against the mortgagor, or those claiming 159 under him, for an installment of the mortgage debt past due, without notice to the party in possession to quit, before action brought. A lease of premises becomes merged in the fee, when they both unite in the same person. A mortgagee may proceed against the mortgagor by other methods than by scire facias for installments past due; by sci. fa. he must wait until all are due. 26 9 179 24 26 9 193 1484 193 1486 26 9 203 1140 26 THIS was an action of ejectment, brought by Ballance against Carroll, in the Circuit Court of Peoria county, to recover the following described real estate: "All of lot three, in block forty-seven of Ballance's Addition to Peoria, together with certain adjoining ground, enclosed and occupied therewith, described and bounded as follows, to wit: Beginning at a point 202 $173, in the south-west line of said lot, 127 feet south-east of the lower line of Water street; thence to a point in Ballance's Avenue, as the same is represented on the recorded plat of said addition, 150 feet below Water street; thence along down said avenue to the Illinois river; thence up said river to the line between lots three and four of said addition; thence along up said line to the place of beginning; excepting so much of said above described real estate as is included in French Claims No. Carroll v. Ballance. Twenty-nine and Thirty-three, as the same were surveyed and platted by Joseph C. Brown, United States Deputy Surveyor." The defendant pleaded the general issue, and the cause was tried by jury. The jury found the defendant guilty, and judgment was entered on the verdict. On the trial the plaintiff offered in evidence a mortgage executed by William Kellogg, which is as follows: "This deed, made this fifth day of November, 1855, between William Kellogg of the first part, and Charles Ballance of the second part, (both of Peoria,) witnesseth, that the said party of the first part, for and in consideration of one dollar in hand. paid, and the further consideration hereinafter contained, has bargained, sold and conveyed, and by these presents does bargain, sell and convey, unto the said party of the second part, the following described piece of land, to wit:" (Here follows a description of all the lands embraced in the declaration; and said description includes also the two French Claims, excepted from the description in the declaration.) "Together with all the appurtenances thereto belonging, or in any wise appertaining; to have and to hold the said tract of land and appurtenances to the said Ballance, his heirs and assigns, for his and their own proper use and behoof forever. Provided, however, and upon this express condition, that whereas the said Ballance has on this day sold to said Kellogg the above described premises for the sum of forty thousand three hundred and twenty dollars, three thousand of which has been paid in hand, and ten promissory notes have been executed by said Kellogg to said Ballance for the residue, of three thousand seven hundred and thirty-two dollars each, all bearing even date herewith, and the first payable on the first day of April, 1857, and each of the others payable one year later. Now, therefore, if the said. Kellogg shall well and truly pay said several promissory notes, according to the tenor and effect thereof, then the above conveyance to be null," etc. The plaintiff then offered in evidence the ten promissory notes mentioned in the mortgage. The defendant objected, and excepted to the admission of the mortgage and notes in evidence. The plaintiff called Henry M. Kellogg who testified that William Kellogg died November 15th, 1858; that he was in possession of the premises described in the mortgage at the time. of his death; that Carroll and he claimed the possession of the premises under the right of William Kellogg; that after Kellogg's death, witness and his brother, Urial, took possession of premises as administrators of William Kellogg; remained in |